Category Archives: Legalization Process

A day before President Barack Obama is slated to visit the Silver State and deliver a speech outlining principles for Comprehensive Immigration Reform (CIR), a group of U.S. Senators has unveiled its own set of general proposals. Although visible progress is a welcome sign to immigration advocates who thought they may have to wait until spring for any action, the details of what is being proposed are strongly reminiscent of past proposals that have not borne fruit.

Echoing all CIR proposals since 9/11, this one attempts to forge bipartisan compromise by tying any broad-based path to citizenship with “increased enforcement and border security.” Advocates of CIR have often asked in recent years what would satisfy this criterion if 400,000 deportations per year and a decade of constant year-over-year budget increases for enforcement are deemed to have not been enough.

Cheerleaders for CIR can find encouragement in the fact that the Senate is leading the way — although the political makeup of the Senate is arguably less conducive to passing a broad package of reforms, it also has higher procedural hurdles for advancing legislation. The most recent effort to pass immigration law reform — approval of the DREAM Act to offer relief to young undocumented immigrants — died in the Senate after failing to overcome a filibuster. Similarly advocates should be optimistic that broad principles are being introduced and a path to citizenship for all of the estimated 11-12 million aspiring citizens is on the table — some advocates had worried that only a piecemeal set of small reforms could pass both houses of Congress and that some groups might be left out. Finally, it is obvious that the political environment is different in 2013 than it was throughout President Obama’s first term: on this issue perhaps less so because he is a re-elected president who is seen as deserving to implement his mandate and more because the Republican Party desperately wants to make a viable bid for Latino votes in 2014 and beyond.

But the news is not all cheery when seen through a political handicappers eyes. First, the community of immigration advocates, aspiring citizens, and their families should know now that power players in Washington posturing toward a goal does not guarantee that said goal will be realized. The proposals being ballyhooed today are very similar to those put forth in prior Congresses dating back half a decade or more and changes in the electorate, where they have occurred, are arguably more stepwise than sweeping.

Some of the familiar ideas in this proposal include:

More border security including the use of drones to patrol the borders and a promise to provide Customs and Border Protection with the tools and resources it needs to “apprehend every unauthorized entrant;”

A path to Permanent Residence for aspiring citizens who pay fines and back taxes and pass a background check;

Expansion of high-skill work visas such as the tiny number in the H-1B category;

Provisions for an accelerated “alien entrepreneur” residency for job creators;

An improved system for employment authorization verification; and

Some form of guest worker program

Among the new approaches in this proposal are:

An explicit “enforcement-first” approach that would rely on approval from a new commission of governors rather than the usual rhetoric of “we have to secure the borders before we discuss legalization”; and

A new system for proactively tracking exits from the country to prevent overstays of temporary visas (one study finds that 38 to 50 percent of all unauthorized immigrants overstayed their visas).

Finally, there are a few potential poison pills in what is being proposed:

The enforcement-first approach is engineered to provide political cover for both sides if negotiations break down or bills fail to win approval — one political party can point to concerns over border security and the other can score political points by highlighting its rival’s intransigence;

We again see the notion that those currently out of status must “go to the back of the line,” but it is unclear precisely what is meant by this. For some visa categories (see the recent Visa Bulletin here) the “back of the line” is a far-flung place 16, 19, or even 23 years in the past.

Universal employment authorization — many observers say that to truly achieve robust, universal employment verification the U.S. would have to implement a national identification card that every authorized worker would bear. Such a proposal faces staunch opposition from civil liberties advocates from both ends of the political spectrum.

Ours is still a bicameral legislature, and any proposal must appeal not only to a handful of Republican Senators but also to enough Republicans in the House to make it to a vote and survive. The attitude that the Republican Party must moderate its policies if it is to survive is not one that is universally held.

All in all, we have this week signs of progress but nothing upon which to make firm plans or even friendly bets. President Obama will weigh in when he visits Las Vegas tomorrow and we will continue to keep an eye on these developments.

An important change is pending in the federal regulatory system, and you can make an impact.

There are an estimated ten to twelve million undocumented immigrants in the United States at this time. Among these, a large number are not eligible for a process called Adjustment of Status because they did not originally enter the United States with a visa, meaning that they cannot “fix their papers” without first leaving the United States. However, the law also states that any person who leaves the United States after being unlawfully present for more than one year will be punished with a ten-year bar of re-entry. The only way for this ten-year punishment to pass is with time or by securing approval of an I-601 waiver.

The I-601 waiver is available to certain aliens who can show that their U.S. citizen or Permanent Resident spouses or parents would suffer “extreme hardship” if the ten-year bar were not cancelled, meaning that the family would either spend ten years separated or that the family members would have to relocate to another country. The “extreme hardship” standard is high, and it requires suffering that is beyond what one would normally expect from these circumstances. Depending on personal circumstances, timing, and luck, families may have to apply for an I-601 waiver again and again, spending hundreds of dollars and facing processing times commonly between eight months and two years. The current system creates enormous heartache and suffering for families seeking legal status in this country.

In January, President Obama proposed to change this system. He cannot change the laws on his own, but his administration has proposed a change to this process. Currently, an applicant must file an I-130 petition, attend an immigrant visa appointment in the country of origin and receive the ten-year punishment, and then submit the waiver application. From the time of the visa appointment until the waiver is approved, the family of those applicants must either live apart from their loved ones or relocate temporarily to countries they have never known.

Under the proposed rule change, the second and third steps would be reversed. Applicants could file for pre-approval of a waiver from the United States and then, if it is approved, return briefly to the country of origin before coming home to the United States as permanent resident aliens. This change could make the process much more predictable, less painful, and more attractive to families. For many families where one person lacks lawful immigration status, the uncertainty of the current I-601 process is a barrier to pursuing legal status. If the pre-approval (or provisional) waiver process is approved, many families may pursue legal status by taking advantage of this new, more humane process.

This is great news, and we strongly support approval of Proposed Rule USCIS-2012-0003. However, the process is very narrow and it should be expanded.

Under the proposed rule, only immediate relatives of U.S. citizens would be eligible for provisional waivers. This means that only the spouses and unmarried, under-21 children of U.S. citizens would be able to apply for a waiver from the United States even though the law permits I-601 waivers for adult children of U.S. citizens and for the spouses, minor children, and adult children of Permanent Residents.

Additionally, the proposed rule has many arbitrary limitations. Only applicants with one and only one basis of inadmissibility would be eligible for a provisional waiver. Applicants with other inadmissibility issues such as immigration fraud or criminal convictions would not be eligible, even though waivers based on the same hardship standard are available for those forms of inadmissibility. There are also other waivers of inadmissibility that are easier to get, such as permission to re-apply for immigrants who were previously removed and a waiver of “alien smuggling” involving close family members. The proposed rule does not permit stateside consideration of these waivers, and it seems to prioritize streamlining over consistency within the law.

Further, the proposed rule cuts out those who are currently in deportation proceedings as well as those who already have their immigrant visa appointment scheduled. The immigration court system is grossly overcrowded, and the proposed rule ignores a possibility to relieve this congestion by allowing certain individuals to close their deportation cases and pursue a provisional waiver that would allow them to go abroad and return to the United States with legal status. Additionally, the proposed rule penalizes families that were proactive and scheduled their appointments abroad by denying them access to a process that could make the pursuit of legal status much less painful. This is unfair.

In order for this change to be approved, the government must see sufficient interest and support among the public. You can comment in favor of this change by going to http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-0001. You can also submit comments via email or by postal mail. The deadline for comments is June 1, 2012.

We have prepared an extensive comment in support of the proposed rule and requesting that the process to be expanded to help people besides the immediate relatives of U.S. citizens. We would encourage you to echo our official comments by referencing comment USCIS-2012-0003-1704 in addition to including your own personal note. You can see our comment at http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-1704.

Many of you know someone who has gone through this difficult process or who is undocumented and will need to apply for a waiver in the future. Some of you and your loved ones have already gone through this process and know how hard it is. In the spirit of solidarity, we would ask each of you to comment in support of this positive change. Please also pass on the word to anyone you know who may be supportive.